Military Divorce and the Impact on Assets

During any divorce, one of the most contested issues involves the property distribution. What am I entitled to? How much money will I get? Do I get to keep the home? What about the debts? Often, these questions will circulate in anyone who even thinks of the divorce option. However, one further question a military spouse must ask, how does a divorce impact my military pay, retirement, and benefits? A general rule of thumb for property division is anything defined as marital, asset or debt, will be divided equally (50/50).

One common situation is dealing with a residence. If the house was bought during the marriage, then it will be marital property. To determine the amount of money the house is worth, the amount owed on the mortgage is subjected from the fair market value to create the equity. Then the equity is divided equally (50/50).

For example, a house has a fair market value of $200,000.00. The amount owed on the mortgage is $150,000.00. Therefore the equity is $50,000.00. Each spouse’s marital portion is $25,000.00. Therefore, if one party wants to keep the residence, this spouse will have to buy the other spouse outright by paying the other spouse $25,000.00. Should neither party want to keep the house, then the house is sold. In relation to military cases though, you are not just dealing with property with cash values. You are also dealing with disability pay, a military pension, basic housing allowances (BAH), dislocation allowances (DLA), severance plans/pay, CONUS COLA allowances, military retired pay benefits, commissary and exchange benefits, survivor benefits, and any other allowances.

In my experience, the most common source of contention lies in the military pension. When figuring out if the other spouse is entitled to any portion of the military retirement pay, the marital portion must first be defined. The toll begins at the wedding date if the military member is already in the service or at the start of military service if the parties are already married. Then, generally, it ends at the date of separation.

Once the marital portion is defined, a spouse may still not be automatically entitled to a portion of the military retirement pay unless the years of marriage and years of service are for a certain duration. For example, the Defense of Financial and Accounting Services (DFAS) will not send a portion of the retirement check directly to the ex-spouse absent a ten year overlap of marriage and military service. Another important consideration is the Survivor Benefit Plan.

This plan allows the non-military spouse, or the ex-spouse in our consideration, will get a percentage of the selected base amount of the military pension for the rest of his/her life should the ex-spouse outlive the military member. Another important consideration is that if the military service is at least twenty years, the marriage lasted at least 20 years, and there is an overlap of at least twenty years, then the ex-spouse may also be entitled to medical insurance and other medical benefits.

To ensure your rights are protected, especially as a military spouse, be sure to obtain legal advice with a family law attorney with knowledge and experience in the military divorce practices.

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Angela McIlveen
CEO/Partner Attorney
Angela McIlveen is a founding Partner Attorney at the McIlveen Family Law Firm. As a partner at the McIlveen Law Firm, she handles cases in family law including child custody and support, divorce, alimony, adoption, separation, domestic violence and equitable distribution. She is often called upon to teach CLE classes to other attorney and to speak at events.

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